Monday, December 3, 2012

The
recognition of same-sex marriages generates debate on both the federal and
state levels. Either legislatively or judicially, same-sex marriage is
legal in seven states. Other states allow civil unions or domestic
partnerships, which may provide similar state-level rights and/or benefits.
Many states have statutes or constitutional amendments limiting marriage to one
man and one woman. These state-level variations raise questions about the
validity of such unions outside the contracted jurisdiction and have
bearing on the distribution of federal benefits.

The Defense of Marriage Act (DOMA), P.L. 104-199, prohibits federal recognition
of same-sex marriages and allows individual states to refuse to recognize
such marriages performed in other states. Section 3 of DOMA requires that
for purposes of federal benefit programs, marriage is defined as the union
of one man and one woman. Lower courts have started addressing DOMA’s constitutionality.
On May 31, 2012, the First Circuit became the first federal appellate court to determine
DOMA’s constitutionality. The court found that the denial of benefits to
same-sex couples residing in a state where they were legally married
caused an adverse effect on a historically disadvantaged group. This
adverse result, combined with its implications for historical state
prerogatives, called for a careful analysis. After conducting a “closer
examination” of reasons Congress proffered for denying benefits, the court
found these justifications inadequate on equal protection grounds and,
therefore, held DOMA unconstitutional. In reaching its narrow decision,
the court left unresolved questions regarding whether these couples have a
fundamental right to marry or whether states are obligated to recognize
such unions. Similarly, on October 18, 2012, the Second Circuit Court of
Appeals found DOMA unconstitutional, albeit using a different standard of
review. The Second Circuit is the first appellate court to hold that
homosexuals are a quasi-suspect class for equal protection purposes warranting
intermediate scrutiny of legislation pertaining to their status. It would
appear that there is a circuit split as to the appropriate standard of
review in determining DOMA’s constitutionality on equal protection grounds,
which may make it more likely that the Supreme Court will review one or
both of these cases.

Questions regarding same-sex marriages figure prominently in California. After
the state’s highest court found that denying same-sex couples the right to
marry violated the state constitution, voters approved a constitutional
amendment (“Prop 8”) limiting the validity and recognition of “marriages”
to heterosexual couples. On February 7, 2012, a panel of the Ninth Circuit
Court of Appeals affirmed a lower court decision finding Prop 8 violates
both the Equal Protection and Due Process Clauses of the Fourteenth
Amendment, inasmuch as voters took away a right from a minority group
without justification when they approved Prop 8. In a matter of first
impression, the lower court found that Prop 8 deprived same-sex couples of
the fundamental right to marry under the Due Process Clause and excluded
such couples from state-sponsored marriage while allowing heterosexual
couples access in violation of the Equal Protection Clause. While the appellate
court affirmed the lower court’s decision, it did so on much narrower grounds
based on historical facts specific to California. Therefore, this decision
may have little impact on other jurisdictions, making U.S. Supreme Court
review less likely.

This report discusses DOMA and legal challenges to it. It reviews legal
principles applied to determine the validity of a marriage contracted in
another state and surveys the various approaches employed by states to
address same-sex marriage. It also examines previous Congressional
resolutions proposing a constitutional amendment and limiting federal courts’ jurisdiction
to hear or determine any question pertaining to the interpretation of DOMA.

Date of Report: November 19, 2012
Number of Pages: 36Order Number: RL31994Price: $29.95

For email and phone orders, provide a Visa, MasterCard, American Express, or Discover card
number, expiration date, and name on the card. Indicate whether you want e-mail
or postal delivery. Phone orders are preferred and receive priority processing.